Augusto Pinochet Ugarte

PROCEEDINGS IN THE UK

In 1998 Pinochet travelled to the United Kingdom to receive medical treatment. Spanish magistrates requested his extradition with respect to alleged acts, including torture, committed whilst he was Head of State and linked to the military overthrow of President Allende and the terrible political repression that followed.

Following the Spanish request of 16 October 1998 for Pinochet’s extradition in respect to the charges in a 1996 indictment against him by the Spanish courts, a British Magistrate issued a provisional warrant to arrest him based on the 1989 Extradition Act. Pinochet was arrested in London on 17 October 1998.

On 28 October 1998, the High Court ruled that Pinochet was unlawfully arrested on the grounds that, as a former Head of State, he was entitled to immunity.

On 25 November 1998, the House of Lords, Britain’s highest court, overturned the High Court’s judgment. It emphasized that a former Head of State may only benefit from immunity for acts carried out in the exercise of his office, but which acts cannot include ‘international crimes’ such as torture or hostage-taking (ruling known as ‘Pinochet I’).

Following this judgment, France, Belgium and Switzerland also issued extradition requests regarding Pinochet.

On 9 December 1998 Home Secretary Jack Straw granted permission to proceed with Pinochet’s extradition.

On 15 January 1999, the House of Lords set aside its earlier decision of 25 November 1998 upholding Pinochet’s claim contesting the impartiality of one of the judges (Lord Hoffman), based on his links with Amnesty International ("Pinochet II"). A new panel of 5 judges was then set up to reach a new, ruling on the 28 October 1998 judgment of the High Court.

On 24 March 1999 the House of Lords confirmed the legality of Pinochet's arrest but excluded 27 of the 30 charges in the Spanish warrant against Pinochet ("Pinochet III"). By 6 votes to 1 the House of Lords held that Pinochet was not entitled to immunity in extradition proceedings with regards to charges of torture and conspiracy in torture where the alleged acts took place after the relevant States (Chile, Spain and the UK) had become parties to the 1984 Convention against Torture.

The Lords held that acts committed outside British territory could be prosecuted under national law only if committed after the introduction of section 134 of the 1988 Criminal Justice Act. However, one of the judges, Lord Millet pointed out that torture was a crime recognised under customary international law and triggered the application of the principle of universal jurisdiction. Considering that customary international law is part of common law, the British courts had and always have had extra-territorial criminal jurisdiction by virtue of the principle of universal jurisdiction based on customary international law.

While 6 judges agreed that Pinochet had no immunity for crimes subject to the UN Torture Convention, a majority also ruled that, to satisfy the double criminality rule (which requires that the offence for which the extradition is sought be also recognised as a crime under the laws of the State from which the extradition is sought), the crimes had to be recognised as such in the UK and in Spain at the time they were committed.

For 2 judges (Millet, Phillips) customary international law had progressed to the point that a former head of state could not claim immunity for crimes against international law such as torture. For 4 other judges (Browne-Wilkinson, Hope, Hutton, Saville), however, it was only the ratification by the States in question of the UN Torture Convention that overruled the common law functional (ratione materiae) immunity enjoyed by a former head of state for "official" acts. They considered therefore the Convention to be inconsistent with the notion that States (or former heads of state) can assert immunity for such acts.

On 15 April 1999 the Home Secretary issued a new authorisation to proceed with the extradition request.

On 8 October 1999, at the conclusion of Pinochet's extradition hearings the Metropolitan Magistrate held that the crimes alleged against Pinochet constituted crimes under both British and Spanish law and thus permitted his extradition.

On 11 January 2000, on the basis of the medical examinations into the state of Pinochet's health, carried out by 4 specialists, the Home Secretary concluded that Pinochet was unfit to stand trial.

On 15 February 2000 the High Court ordered the release of Pinochet’s medical report to Belgium, Spain, France and Switzerland. Although each country contested the findings of the medical report, none of them filed any legal challenge.

On 2 March 2000 the Home Secretary ruled that Pinochet would not be extradited to Spain. Pinochet then returned home to Chile.


PROCEEDINGS IN FRANCE

In November 1998 France opened up an investigation with regards to the victims of General Pinochet’s dictatorship.

Within the context of the British proceedings regarding Pinochet, on 12 November 1998, France addressed an extradition request to the United Kingdom.

In 2003, investigations by the French newspaper Le Point and the TV channel Canal+, shore up the suspicion of French participation, under Valéry Giscard d'Estaing’s presidency (1974-1981), in Operation Condor. Subsequently, however, the National Assembly rejected demands from socialist and ecologist parliamentarians to set up an information commission or an enquiry commission to conduct investigations into this affair. .

Eighteen people (17 Chilean and 1 Argentinean), essentially military personnel, including General Pinochet and 4 retired generals, were indicted for “unlawful confinement accompanied with or followed by acts of torture” or complicity in these acts.

The French proceedings against Pinochet related to several disappearances of French citizens which occurred during Operation Condor: the disappearance of Georges Klein, personal doctor of President Salvador Allende, abducted on 11 September 1973 during the coup d'état organised by Pinochet in order to overthrow Allende; the disappearance of 2 former members of the Revolutionary Left Movement (MIR), Alphonse Chanfreau et Jean-Yves Claude- Fernandez, who disappeared on 30 July 1974 and on 1 November 1975, and the Catholic priest, Etienne Pesle, who was abducted on 19 September 1973.

On 22 October 2004, the Paris Public Prosecutor requested that the Pinochet case be referred to the Paris assize court, where the former president could be judged in absentia for the “illegal detention and torture” of several French or Franco-Chilean citizens who disappeared between 1973 and 1975.

On 25 May 2005 the investigating judge, Sophie Clément, reissued the international arrest warrants first issued in 2001 against Pinochet and 18 other military personnel. These arrest warrants were similar to an indictment being issued.

This was the final legal procedure which had to be taken before the accused could be referred to a French assize court where, under French law, a trial, in absentia, could then take place.

At the beginning of January 2006, the Parquet of Paris issued an official indictment against Pinochet. It was then up to the instructing judge, Sophie Clément, to take the decision to refer Pinochet to the assize court.

Augusto Pinochet, however, died on 10 December 2006, thus putting an end to all legal proceedings in Chile and abroad.